senate Bill S1194

Amended

Relates to vehicular assault and vehicular manslaughter

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 09 / Jan / 2013
    • REFERRED TO CODES
  • 06 / Mar / 2013
    • AMEND AND RECOMMIT TO CODES
  • 06 / Mar / 2013
    • PRINT NUMBER 1194A
  • 29 / May / 2013
    • 1ST REPORT CAL.772
  • 30 / May / 2013
    • 2ND REPORT CAL.
  • 03 / Jun / 2013
    • ADVANCED TO THIRD READING
  • 04 / Jun / 2013
    • PASSED SENATE
  • 04 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 04 / Jun / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Establishes the class E felony of vehicular assault in the third degree; redefines the requirements for a violation of vehicular assault in the second degree; expands the offenses of vehicular assault and vehicular manslaughter; and establishes the class D felony of vehicular manslaughter in the third degree.

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Bill Details

Versions:
S1194
S1194A
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Add §§120.03-a & 125.12-a, amd §§120.03, 120.04 & 125.12, Pen L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1835
2009-2010: S4168, S7081A

Sponsor Memo

BILL NUMBER:S1194

TITLE OF BILL:
An act to amend the penal law, in relation to vehicular assault and
vehicular manslaughter

PURPOSE:
To establish new criminal sanctions and enhance existing criminal
sanctions in order to adequately deter and punish motorists who injure
or kill pedestrians or other drivers as a result of dangerous and
unlawful driving.

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend the Penal Law by adding new §120.03-a,
establishing the crime of Vehicular Assault in the Third Degree, a class
E felony. Vehicular Assault in the Third Degree would be committed when
a driver seriously injures another and the driver (a) knows that his or
her license was suspended or revoked; or (b) the driver was operating
his or her vehicle in violation of Title VII ("rules of the road") of
the Vehicle & Traffic Law ("VTL") thereby causing the injury and had two
or more prior VTL violations in the last 18 months; or (c) is impaired
by his or her use of alcohol in violation of VTL §1192(1). An
affirmative defense that the serious physical injury was caused in whole
or substantial part by some factor other than the driver's impairment or
the manner in which the driver was operating the vehicle would be
established.

Section 2 would amend Penal Law §120.03 to redefine the crime of
Vehicular Assault in the Second Degree. The level of the crime would be
raised from a class E to a class D felony. Changes also would include
eliminating the element of criminal negligence from the crime of
Vehicular Assault in the Second Degree when a driver is intoxicated or
his or her ability is impaired by alcohol and drugs and he, or she,
while operating a vehicle, motor vehicle, vessel, snowmobile or all
terrain vehicle, causes serious physical injury to another person.
Section 2 also would provide an affirmative defense where such serious
physical injury was primarily caused by some factor other than either
the driver's intoxication or impairment by alcohol and drugs or the
manner in which he or she operated the vehicle while so intoxicated or
impaired. The crime would also include commission of the crime of
Vehicular Assault in the Third Degree with Criminal Negligence.

Section 3 would amend Penal Law §120.04 by increasing the penally for
the crime of Vehicular Assault in the First Degree from a class D felony
to a class C felony, and redefining the crime so as to punish offenders
who (a) with intent to evade a police officer after having received a
lawful signal to bring the vehicle to a stop, operate a vehicle in
violation of the VTL's "rules of the road" and causes serious physical
injury; (b) operate a vehicle with a blood alcohol content of or (c)
commit the crime of Vehicular Assault in the Second or Third Degrees and
have a prior Vehicular Assault, Vehicular Manslaughter or Criminally
Negligent Homicide involving a vehicle conviction. This section also
includes an affirmative defense where such serious physical injury was
primarily caused by some factor other than the driver's intoxication or
the manner in which the driver operated the vehicle.


Section 4 would amend the Penal Law by adding new §125.11, establishing
the crime of Vehicular Manslaughter in the Third Degree, a class D
felony. Like Vehicular Assault in the Third Degree, Vehicular
Manslaughter in the Third Degree would be committed when a driver causes
the death of another and the driver (a) knows that his or her license
was suspended or revoked; or (b) the driver was operating his or her
vehicle in violation of the VTL's "rules of the road," thereby causing
the death and had two or more prior VTL violations in the last 18
months; or (c) is impaired by his or her use of alcohol in violation of
VTL §1192(1). The section also establishes the affirmative defense that
the serious physical injury was caused in whole or substantial part by
some factor other than the driver's impairment or the manner in which
the driver was operating the vehicle.

Section 5 would amend Penal Law § 125.12 to redefine the crime of
Vehicular Manslaughter in the second Degree. The level of the crime
would be raised from a class D to a class C felony. Changes also include
adding subdivision 4 regarding suspended licenses. Subdivision 5 adds
any violation of Title VII of the Vehicle & Traffic Law other than
subdivisions two, three or four of §1192 and also if the driver has been
previously convicted of two or more violations of Title VII of the
Vehicle & Traffic Law on at least two separate dates within the
immediately preceding eighteen months.

Section 6 of the bill would provide that the bill would take effect
immediately.

JUSTIFICATION:
An alarming number of pedestrians and others are seriously hurt or
killed each year by dangerous drivers operating their vehicles in
violation of the VTL's "rules of the road." Many of these dangerous
drivers are operating a vehicle despite prior convictions that resulted
in the suspension or revocation of their license. While such drivers are
sometimes held criminally accountable if there is compelling proof of
gross negligence or recklessness, all too often under current law such
dangerous behavior and deadly results can only be charged as a simple
traffic infraction.

VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS

Current law fails to adequately address the significant problem of
drivers who flagrantly violate the VTL's "rules of the road" by
speeding, refusing to obey traffic signals, or by committing other
"moving" violations, even when such driving results in the tragedy of a
pedestrian injury or death. Prosecutors are unable to charge drivers who
seriously injure or kill innocent bystanders under the existing
Vehicular Assault and Vehicular Manslaughter crimes, even when the
serious injury or death was the direct result of the driver's VTL
violation, absent proof of gross negligence. In addition, Prosecutors
must have proof of such criminal negligence in order to charge drivers
who are not licensed to operate a vehicle (often because their licenses
have been revoked or suspended as a result of past misdeeds) with the
crimes of Vehicular Assault and Vehicular Manslaughter. This unfortunate
reality offends the public conscience and invalidates the underlying
objective of licensing drivers, and should be addressed.


Recognizing, however, that a driver's violation of the VTL may not, in
all cases, be a direct cause of another person's death or injury, the
bill provides an affirmative defense where such serious physical injury
or death was primarily caused by some factor other than the defendant's
driving.

VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS - INTOXICATION

In 1983, the Legislature created the felony crimes of Vehicular Assault
and Vehicular Manslaughter to provide harsher penalties for intoxicated
drivers. These statutes, however, have not achieved that purpose because
prosecutors are still required to prove that the driver acted with
criminal negligence - a difficult standard to prove since courts have
ruled that driving while intoxicated, by itself, does not constitute
criminal negligence. The unfortunate result is that drunk or impaired
drivers who cause another person's death or serious physical injury
cannot be charged with vehicular assault or manslaughter unless they
have committed additional traffic infractions like speeding or running a
red light.

This deficiency in existing law is best illustrated by example. In
Suffolk County, an intoxicated driver crashed into the vehicle of an
innocent 31 year-old driver who died as a result of his injuries.
Despite the tragic results of this heinous crime, the drunk driver could
not be charged with vehicular manslaughter since he did not commit a
traffic infraction other than drunk driving. Incredibly, he received
only a conditional discharge and a fine. Also in Suffolk County, a drunk
driver, who struck and killed an unsuspecting teenage girl as she stood
near the side of a road, shamefully could only be charged with a
misdemeanor due to the onerous criminal negligent requirement. Current
law intolerably enables drunk drivers to escape punishment for victim
injuries and deaths. By removing the element of criminal negligence from
the crime of Vehicular Assault in the Second Degree and Vehicular
Manslaughter in the Second Degree when there is proof of intoxication,
the bill provides law enforcement with appropriate tools to effectively
prosecute and punish drunk drivers.

Recognizing, however, that a driver's ingestion of alcohol or drugs may
not in all cases be a direct cause of another person's death or injury,
the bill provides an affirmative defense where such serious physical
injury or death was primarily caused by some factor other than the
defendant's intoxication or impairment. For example, an intoxicated or
impaired driver lawfully parked at the side of the road "sleeping off"
the effects of his or her intoxication or impairment conceivably could
be struck by another vehicle. In that instance, if the driver who
"primarily caused" that accident suffers serious physical injury or
death, the intoxicated or impaired individual would be able to assert
the affirmative defense and avoid liability for the other driver's
injuries or death.

VEHICULAR MANSLAUGHTER REFORMS - EVASION OF A POLICE OFFICER

In addition to working diligently to reduce the number of drunk-driving
tragedies, New York State strives to keep its highways and other,
thoroughfares free from other unsafe drivers as well. Often, serious
injuries and fatalities have occurred due to drivers who display an


outrageous disregard for the well-being of others by traveling in excess
of the speed limit and refusing to comply with lawful police orders.

A tragedy in Queens perhaps best illustrates the importance of creating
new crimes and enhancing penalties for these motorists who seriously
injure or kill. A man led police on a high speed and deadly chase
through the streets of a Queens neighborhood. In his wake, he left two
elderly women dead and a 63-year-old man in critical condition.
Regrettably, under current law this driver can only be charged with a
class C felony. Under the bill, a person who leads the police on a
high-speed chase that results in the death of another will be charged
with Vehicular Manslaughter in the First Degree, a class B felony,
thereby exposing such an offender to 25 years in state prison.

The following list of similarly tragic crimes further underscores the
need for legislation that adequately addresses the cowardly and deadly
acts of those who refuse to adhere to the rules of the road and fail to
heed the instructions of law enforcement personnel.

* After leading police on a 110 mile per-hour chase through the streets
of a small town in upstate New York, a motorist lost control of his
vehicle and plowed into a restaurant and delivery truck killing two
27-year-old men.

* In November of 1996, a motorist, after refusing a State Trooper's
instruction to stop his vehicle, led the State Police on a 95 mile per
hour chase which resulted in a crash that left a 13-year-old girl dead.

* In 2001, a State Trooper stopped a vehicle for a traffic infraction.
As the State Trooper approached the vehicle on foot, the driver sped off
and struck a tree, killing his 21- and 22-year-old passengers.

The bill also makes conforming changes to the crime of Vehicular Assault
in the First Degree. Under the bill, those who violate the rules of the
road while evading pursuing police officers and cause serious physical
injury will be subject to swift prosecution for a class C felony.

PRIOR LEGISLATIVE HISTORY:
2008: Passed Senate/Assembly Codes Cmte.
2010: S.4168 Reported out of Codes; Advanced to Third Reading
2012: S.1835 Passed Senate

FISCAL IMPLICATIONS:
It is not anticipated that this legislation will have any significant
fiscal impact.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1194

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sens. FLANAGAN, LARKIN, MAZIARZ -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in  relation  to  vehicular  assault  and
  vehicular manslaughter

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The penal law is amended by adding a new  section  120.03-a
to read as follows:
S 120.03-A VEHICULAR ASSAULT IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF VEHICULAR ASSAULT IN THE THIRD DEGREE WHEN HE OR
SHE:
  (1) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE, AND KNOWS OR HAS REASON TO KNOW THAT: (A) HIS OR HER LICENSE OR
PRIVILEGE  OF  OPERATING  A MOTOR VEHICLE IN ANOTHER STATE OR HIS OR HER
PRIVILEGE OF OBTAINING A LICENSE TO OPERATE A MOTOR VEHICLE  IN  ANOTHER
STATE  IS  SUSPENDED  OR REVOKED; (B) HIS OR HER LICENSE OR PRIVILEGE OF
OPERATING A MOTOR VEHICLE IN THE STATE,  OR  HIS  OR  HER  PRIVILEGE  OF
OBTAINING  A  LICENSE  ISSUED  BY  THE COMMISSIONER OF MOTOR VEHICLES IS
SUSPENDED OR REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT  TO
SECTION FIVE HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
  (2) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE  WHEN:  (A)  SUCH SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR
SUBSTANTIAL PART BY THE ACTOR'S VIOLATION OF  ANY  SECTION  OR  SECTIONS
CONTAINED  WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER THAN
SECTION ELEVEN HUNDRED NINETY-TWO OF SUCH TITLE, AND (B) THE  ACTOR  HAS
PREVIOUSLY  BEEN  CONVICTED  OF TWO OR MORE VIOLATIONS OF ANY SECTION OR
SECTIONS CONTAINED WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW  ON
AT  LEAST  TWO  SEPARATE DATES WITHIN THE IMMEDIATELY PRECEDING EIGHTEEN
MONTHS, OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05663-01-3

S. 1194                             2

  (3) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE IN VIOLATION OF SUBDIVISION ONE OF SECTION ELEVEN HUNDRED  NINE-
TY-TWO OF THE VEHICLE AND TRAFFIC LAW.
  IN  ANY  PROSECUTION UNDER SUBDIVISION THREE OF THIS SECTION, IT SHALL
BE AN AFFIRMATIVE DEFENSE THAT SUCH SERIOUS PHYSICAL INJURY  WAS  CAUSED
IN  WHOLE  OR  IN SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE ACTOR'S
IMPAIRMENT BY THE USE OF ALCOHOL OR THE MANNER IN WHICH THE ACTOR  OPER-
ATED THE VEHICLE.
  VEHICULAR ASSAULT IN THE THIRD DEGREE IS A CLASS E FELONY.
  S 2. Section 120.03 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 120.03 Vehicular assault in the second degree.
  A  person  is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
  (1) operates a motor vehicle in violation of subdivision  two,  three,
four  or  four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of  para-
graph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of
the  navigation  law, and as a result of such intoxication or impairment
by the use of a drug, or by the combined influence of drugs or of  alco-
hol and any drug or drugs, operates such motor vehicle, vessel or public
vessel  in  a  manner  that  causes such serious physical injury to such
other person, or
  (2) operates a motor vehicle with a gross  vehicle  weight  rating  of
more  than  [eighteen] TEN thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision  one  of
section  eleven  hundred  ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause  of
such  serious physical injury, and as a result of such impairment by the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
  (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation  and  historic
preservation  law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law and in violation of subdivision two,  three,
four,  or four-a of section eleven hundred ninety-two of the vehicle and
traffic law, and as a result of such intoxication or impairment  by  the
use  of  a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, operates such snowmobile or all terrain vehicle in  a
manner that causes such serious physical injury to such other person.
  If  it  is  established  that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all  terrain  vehicle  caused  such
serious  physical injury while unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a  rebuttable  presumption
that, as a result of such intoxication or impairment by the use of alco-
hol  or  a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, such  person  operated  the  motor  vehicle,  vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
  Vehicular assault in the second degree is a class [E] D felony.
  S 3. Section 120.04 of the penal law, as amended by chapter 496 of the
laws of 2009, is amended to read as follows:
S 120.04 Vehicular assault in the first degree.

S. 1194                             3

  A person is guilty of vehicular assault in the first degree when he or
she  [commits  the  crime  of  vehicular assault in the second degree as
defined in section 120.03 of this article, and either:
  (1)  commits  such  crime  while  operating a motor vehicle while such
person has .18 of one per centum or more by weight of  alcohol  in  such
person's  blood  as  shown  by chemical analysis of such person's blood,
breath, urine or saliva made pursuant to the provisions of section elev-
en hundred ninety-four of the vehicle and traffic law;
  (2) commits such crime while knowing or having reason  to  know  that:
(a)  his  or  her  license  or his or her privilege of operating a motor
vehicle in another state or his or her privilege of obtaining a  license
to  operate a motor vehicle in another state is suspended or revoked and
such suspension or revocation is based upon a conviction in  such  other
state for an offense which would, if committed in this state, constitute
a  violation  of any of the provisions of section eleven hundred ninety-
two of the vehicle and traffic law; or (b) his or her license or his  or
her  privilege  of  operating a motor vehicle in the state or his or her
privilege of obtaining a license issued by  the  commissioner  of  motor
vehicles  is  suspended  or revoked and such suspension or revocation is
based upon either a refusal to submit to a  chemical  test  pursuant  to
section  eleven  hundred  ninety-four  of the vehicle and traffic law or
following a conviction for a violation  of  any  of  the  provisions  of
section eleven hundred ninety-two of the vehicle and traffic law;
  (3)  has  previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of  the  vehicle  and  traffic  law
within  the preceding ten years, provided that, for the purposes of this
subdivision, a conviction in any other  state  or  jurisdiction  for  an
offense  which, if committed in this state, would constitute a violation
of section eleven hundred ninety-two of the  vehicle  and  traffic  law,
shall be treated as a violation of such law;
  (4) causes serious physical injury to more than one other person;
  (5)  has  previously been convicted of violating any provision of this
article or article one hundred twenty-five of this title  involving  the
operation  of  a  motor  vehicle, or was convicted in any other state or
jurisdiction of an offense involving the operation of  a  motor  vehicle
which,  if committed in this state, would constitute a violation of this
article or article one hundred twenty-five of this title; or
  (6) commits such crime while operating a motor vehicle while  a  child
who is fifteen years of age or less is a passenger in such motor vehicle
and causes serious physical injury to such child.
  If  it  is  established  that  the person operating such motor vehicle
caused such serious physical injury or injuries while unlawfully intoxi-
cated or impaired by the use of alcohol or a drug, or  by  the  combined
influence of drugs or of alcohol and any drug or drugs, then there shall
be  a  rebuttable  presumption that, as a result of such intoxication or
impairment by the use of alcohol or a drug, or by the combined influence
of drugs or of alcohol and any drug or drugs, such person  operated  the
motor  vehicle  in  a manner that caused such serious physical injury or
injuries, as required by this section and section 120.03 of  this  arti-
cle]:
  (1)  WITH  KNOWLEDGE THAT HE OR SHE IS BEING PURSUED BY A POLICE OFFI-
CER, OPERATES A MOTOR VEHICLE IN VIOLATION OF ANY  SECTION  OR  SECTIONS
CONTAINED  WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW AND THEREBY
CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON, OR
  (2) CAUSES SERIOUS PHYSICAL INJURY TO ANOTHER PERSON BY OPERATION OF A
VEHICLE IN VIOLATION OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE VEHICLE

S. 1194                             4

AND TRAFFIC LAW WHILE SUCH PERSON HAS .20 OF ONE PER CENTUM OR  MORE  BY
WEIGHT OF ALCOHOL IN THE PERSON'S BLOOD AS SHOWN BY CHEMICAL ANALYSIS OF
SUCH PERSON'S BLOOD, URINE OR SALIVA, OR
  (3)  COMMITS  THE  CRIME  OF  VEHICULAR ASSAULT IN THE SECOND OR THIRD
DEGREE AND HAS BEEN PREVIOUSLY CONVICTED OF  VEHICULAR  ASSAULT  IN  THE
FIRST,  SECOND  OR THIRD DEGREE; OR VEHICULAR MANSLAUGHTER IN THE FIRST,
SECOND OR THIRD DEGREE; OR CRIMINALLY NEGLIGENT HOMICIDE  INVOLVING  THE
OPERATION OF A VEHICLE.
  IN  ANY  PROSECUTION  UNDER SUBDIVISION ONE OR TWO OF THIS SECTION, IT
SHALL BE AN AFFIRMATIVE DEFENSE THAT SUCH SERIOUS  PHYSICAL  INJURY  WAS
CAUSED  IN  WHOLE  OR  IN SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE
ACTOR'S INTOXICATION OR THE MANNER IN WHICH THE ACTOR OPERATED THE VEHI-
CLE.
  Vehicular assault in the first degree is a class [D] C felony.
  S 4. The penal law is amended by adding a new section 125.12-a to read
as follows:
S 125.12-A VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE.
  A PERSON IS GUILTY OF VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE  WHEN
HE OR SHE:
  (1)  CAUSES THE DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE, AND
KNOWS OR HAS REASON TO KNOW THAT: (A) HIS OR HER LICENSE OR PRIVILEGE OF
OPERATING A MOTOR VEHICLE IN ANOTHER STATE OR HIS OR  HER  PRIVILEGE  OF
OBTAINING  A  LICENSE  TO  OPERATE  A  MOTOR VEHICLE IN ANOTHER STATE IS
SUSPENDED OR REVOKED; (B) HIS OR HER LICENSE OR PRIVILEGE OF OPERATING A
MOTOR VEHICLE IN THE STATE, OR HIS  OR  HER  PRIVILEGE  OF  OBTAINING  A
LICENSE  ISSUED  BY  THE  COMMISSIONER OF MOTOR VEHICLES IS SUSPENDED OR
REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT TO SECTION  FIVE
HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
  (2) CAUSES THE DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE WHEN:
(A) SUCH SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR SUBSTANTIAL PART
BY  THE  ACTOR'S  VIOLATION  OF ANY SECTION OR SECTIONS CONTAINED WITHIN
TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER  THAN  SECTION  ELEVEN
HUNDRED  NINETY-TWO OF SUCH TITLE, AND (B) THE ACTOR HAS PREVIOUSLY BEEN
CONVICTED OF TWO OR MORE VIOLATIONS OF ANY SECTION OR SECTIONS CONTAINED
WITHIN TITLE SEVEN OF THE VEHICLE AND TRAFFIC LAW ON AT LEAST TWO  SEPA-
RATE DATES WITHIN THE IMMEDIATELY PRECEDING EIGHTEEN MONTHS, OR
  (3)  CAUSES  THE  DEATH OF ANOTHER PERSON BY OPERATION OF A VEHICLE IN
VIOLATION OF SUBDIVISION ONE OF SECTION ELEVEN HUNDRED NINETY-TWO OF THE
VEHICLE AND TRAFFIC LAW.
  IN ANY PROSECUTION UNDER SUBDIVISION THREE OF THIS SECTION,  IT  SHALL
BE  AN  AFFIRMATIVE  DEFENSE  THAT  SUCH DEATH WAS CAUSED IN WHOLE OR IN
SUBSTANTIAL PART BY SOME FACTOR OTHER THAN THE ACTOR'S IMPAIRMENT BY THE
USE OF ALCOHOL OR THE MANNER IN WHICH THE ACTOR OPERATED THE VEHICLE.
  VEHICULAR MANSLAUGHTER IN THE THIRD DEGREE IS A CLASS D FELONY.
  S 5. Section 125.12 of the penal law, as amended by chapter 732 of the
laws of 2006, is amended to read as follows:
S 125.12 Vehicular manslaughter in the second degree.
  A person is guilty of vehicular manslaughter in the second degree when
he or she causes the death of another person, and either:
  (1) operates a motor vehicle in violation of subdivision  two,  three,
four  or  four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of  para-
graph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of
the  navigation  law, and as a result of such intoxication or impairment
by the use of a drug, or by the combined influence of drugs or of  alco-

S. 1194                             5

hol and any drug or drugs, operates such motor vehicle, vessel or public
vessel in a manner that causes the death of such other person, or
  (2)  operates  a  motor  vehicle with a gross vehicle weight rating of
more than [eighteen] TEN thousand pounds which contains  flammable  gas,
radioactive  materials  or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and  traffic  law,  and
such  flammable gas, radioactive materials or explosives is the cause of
such death, and as a result of such impairment by the  use  of  alcohol,
operates  such  motor  vehicle in a manner that causes the death of such
other person, or
  (3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation  and  historic
preservation  law or operates an all terrain vehicle as defined in para-
graph (a) of subdivision one of section twenty-two hundred eighty-one of
the vehicle and traffic law in  violation  of  subdivision  two,  three,
four,  or four-a of section eleven hundred ninety-two of the vehicle and
traffic law, and as a result of such intoxication or impairment  by  the
use  of  a drug, or by the combined influence of drugs or of alcohol and
any drug or drugs, operates such snowmobile or all terrain vehicle in  a
manner that causes the death of such other person[.], OR
  (4)  COMMITS  THE CRIME OF CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN
SECTION 125.10 OF THIS ARTICLE BY OPERATION  OF  A  MOTOR  VEHICLE,  AND
KNOWS  OR HAS REASON TO KNOW THAT:  (A) HIS OR HER LICENSE OR HIS OR HER
PRIVILEGE OF OPERATING A MOTOR VEHICLE IN ANOTHER STATE OR  HIS  OR  HER
PRIVILEGE  OF  OBTAINING A LICENSE TO OPERATE A MOTOR VEHICLE IN ANOTHER
STATE IS SUSPENDED OR REVOKED; (B) HIS OR HER LICENSE  OR  PRIVILEGE  OF
OPERATING  A  MOTOR  VEHICLE  IN  THE  STATE  OR HIS OR HER PRIVILEGE OF
OBTAINING A LICENSE ISSUED BY THE  COMMISSIONER  OF  MOTOR  VEHICLES  IS
SUSPENDED  OR REVOKED; OR (C) HE OR SHE IS NOT DULY LICENSED PURSUANT TO
SECTION FIVE HUNDRED TWO OF THE VEHICLE AND TRAFFIC LAW, OR
  (5) COMMITS THE CRIME OF CRIMINALLY NEGLIGENT HOMICIDE AS  DEFINED  IN
SECTION 125.10 OF THIS ARTICLE BY OPERATION OF A MOTOR VEHICLE WHEN: (A)
SUCH  SERIOUS PHYSICAL INJURY WAS CAUSED IN WHOLE OR SUBSTANTIAL PART BY
THE ACTOR'S VIOLATION OF ANY SECTION OR SECTIONS CONTAINED WITHIN  TITLE
SEVEN OF THE VEHICLE AND TRAFFIC LAW, OTHER THAN SUBDIVISIONS TWO, THREE
OR  FOUR OF SECTION ELEVEN HUNDRED NINETY-TWO OF SUCH TITLE, AND (B) THE
ACTOR HAS PREVIOUSLY BEEN CONVICTED OF TWO OR  MORE  VIOLATIONS  OF  ANY
SECTION  OR  SECTIONS  CONTAINED  WITHIN  TITLE SEVEN OF THE VEHICLE AND
TRAFFIC LAW ON AT  LEAST  TWO  SEPARATE  DATES  WITHIN  THE  IMMEDIATELY
PRECEDING EIGHTEEN MONTHS.
  If  it  is  established  that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all  terrain  vehicle  caused  such
death  while unlawfully intoxicated or impaired by the use of alcohol or
a drug, then there shall be a rebuttable presumption that, as  a  result
of  such  intoxication or impairment by the use of alcohol or a drug, or
by the combined influence of drugs or of alcohol and any drug or  drugs,
such  person  operated the motor vehicle, vessel, public vessel, snowmo-
bile or all terrain vehicle in a  manner  that  caused  such  death,  as
required by this section.
  Vehicular manslaughter in the second degree is a class D felony.
  S 6. This act shall take effect immediately.

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